Southern Delivery System: ‘District Judge Victor Reyes set aside the Colorado Water Quality Control Commission’s decision to issue a water quality permit to Colorado Springs’ — Chieftain

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From The Pueblo Chieftain (Chris Woodka):

District Judge Victor Reyes set aside the Colorado Water Quality Control Commission’s decision to issue a water quality permit to Colorado Springs and ordered new hearings by the commission. The lawsuit was brought by Pueblo District Attorney Bill Thiebaut and joined by the Rocky Mountain Environmental and Labor Coalition against the commission and Colorado Springs.

The commission approved a Section 401 permit under the federal Clean Water Act that was approved by the Water Quality Control Division in April 2010. However, in upholding the staff decision to grant the permit, the commission failed to consider scientific evidence and instead relied on “gut feeling” and “best professional judgment” in approving the permit, Reyes said in a 57-page ruling. Under deposition, a staff member admitted that no scientific measurement was used in reaching a decision. Reyes also chided the state for not documenting its findings, not evaluating the impacts of growth and failing to use its own methodology.

Thiebaut and the environmental groups argued that the impact of 800,000 people living in El Paso County by 2030 had not been fully considered, and that water quality in Fountain Creek and the Arkansas River would be significantly degraded…

Ross Vincent of the Sierra Club praised the decision as well. “Clean water is really important, and the agencies we rely on to keep it clean are not getting the job done,” Vincent said. “The decision shows Colorado Springs Utilities is not above the law. Urban growth and water quality are unavoidably linked and the state must consider those links when evaluating big projects like SDS.”

More coverage from Pam Zubeck writing for the Colorado Springs Independent. From the article:

The decision is a blow to Colorado Springs Utilities’ SDS pipeline project, now under construction, that will bring water here from Pueblo Reservoir. Utilities’ spokeswoman Janet Rummel explains in an e-mail to the Indy:

The Colorado Department of Public Health and Environment’s (CDPHE) Water Quality Control Division (Division) issued a 401 water quality certification under the Clean Water Act for the SDS project in April 2010, certifying that SDS would comply with all applicable state water quality requirements. The Rocky Mountain Environmental Labor Coalition (RMELC) and Pueblo County District Attorney, Bill Thiebaut, then appealed the CDPHE 401 certification for SDS.

Following extensive review, including testimony from experts at a hearing in December 2010, the Colorado Water Quality Control Commission voted unanimously in January 2011 to confirm the SDS 401 Certification issued by the Water Quality Control Division.

Today, we received Pueblo County Judge Reyes’ ruling regarding the RMELC and District Attorney Thiebaut’s request for a judicial review of the Commission’s affirmation of the Division’s certification. The judge reversed the Commission’s ruling and sent the case back to the Division to revise the 401 Certification.

We are disappointed that the Court disregarded several years of studies and evaluation by federal and state environmental agencies and the extensive mitigation already required of the project.

We are currently evaluating our appeal rights and coordinating with the appropriate state and federal agencies.

Construction of the SDS project is proceeding — providing hundreds of regional jobs and infusing tens of millions of dollars in the southern Colorado economy — while we work to resolve this issue in the courts.

Meanwhile, Colorado Springs has filed an application in water court to build a terminal reservoir for SDS on Williams Creek (same site planned for the Flaming Gorge pipeline), according to Chris Woodka writing for The Pueblo Chieftain. From the article:

The Utilities reservoir is part of a future phase of the Southern Delivery System. The first phase of SDS is a 50-mile long, 66-inch diameter pipeline, new outlet works at Pueblo Dam, three pump stations and a treatment plant now under construction. Completion is expected in 2016. To fully use the pipeline’s entire capacity, the reservoir would be built to provide terminal storage before water is treated. It would be developed in the 2020-25 timeframe. A March filing in Division 2 Water Court indicates a 129-foot high dam, spanning 8,100 feet would detain about 30,500 acre-feet of water. Water would come through the Williams Creek drainage, exchanges from other sources and direct deliveries from SDS…

It’s no secret that Colorado Springs has had designs on the site for years. The site was part of a water court exchange application Colorado Springs filed in 2007, when it was listed as an alternative site in the SDS study. After problems with Colorado Springs’ first choice for SDS terminal storage at Jimmy Camp Creek, to the north of Williams Creek, surfaced in 2008, the Bureau of Reclamation identified Williams Creek as the preferred location. In 2010, the El Paso County planning commission approved the site for location of a reservoir. In 2011, under state legislation adopted the previous year (HB1165), the State Land Board approved sale of land for the reservoir.

But much of the site is on private land owned by the Norris family, which has filed to create the Marlborough Metropolitan District…

The Marlborough district would be to construct a 30,000 acre-foot reservoir for regional use as well as recreation. Located south of the Colorado Springs site, it could be expanded with a higher earthen dam, according to engineering reports. The site also is identified as terminal storage for Aaron Million’s Flaming Gorge pipeline proposal…

There are major differences in approach. Utilities plan would require relocating part of Bradley Road, while the Norris plan does not. The Norris family also has discussed sharing revenue from storage fees with the State Land Board as an alternative to buying that portion of the land, Duncan said.

More coverage from Ryan Maye Handy writing for The Colorado Springs Gazette. From the article:

The crucial 401 certification, which has been battled over for two years, is headed back to the Colorado Public Health and Environment’s Water Quality Control Division. The division granted the certification for Utilities’ Southern Delivery System, a 62-mile-long pipeline, in April 2010. Pueblo County Judge Victor Reyes upheld concerns about the project and reversed a January 2011 decision by the Colorado Water Quality Control Commission to confirm the certification, according to Janet Rummel, a spokeswoman for the project. The 401 certification is a prerequisite for the only remaining obstacle in the project’s completion — a 404 permit issued by the U.S. Army Corps of Engineers…

Since 2010, the SDS project has battled with the Rocky Mountain Environmental Labor Coalition and Thiebaut over its 401 certification. Thiebaut and the coalition challenged the project’s certification when it was granted two years ago.

More Southern Delivery System coverage here and here.

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